Ever since the January oral argument in the Comcast-BitTorrent case, there’s been speculation about the FCC’s authority over broadband Internet services. And as Tom reminds us, this question is linked to a larger and increasingly obvious truth—that the categories and boxes by which the ‘96 Telecom Act classifies services are visibly breaking down. So too are the old distinctions between different parts and players in the Internet ecosphere.
I’ve had a chance to read Tom’s entire speech, and find myself in agreement with nearly all of it intellectually. His conclusion, that Congress should consider a new statutory structure for communications regulation, is daunting. But this is indeed a subject we should be debating for it underlies most of the less sweeping regulatory arguments we’re having today.
As I said yesterday following Tom’s remarks, if there are questions about the authority of the FCC in the Internet ecosystem, the proper answer is not for the FCC to get adventurous in interpreting its authority, as some are urging. Instead, any question of the FCC’s jurisdiction over the Internet should properly be referred to the Congress for resolution. I believe this strongly. The FCC derives its authority from the Congress, and if the courts say the FCC lacks the authority it needs to do what it wants to do, the proper—and constitutionally correct—answer is to ask the Congress to address the question. Any other answer will appear as a means-justifies-the-ends rationalization by the Commission… an action it can’t reasonably expect anyone in disagreement to accept. At best, it would lead to litigation and investment uncertainty. At worst, it will diminish respect for the Commission and paralyze their agenda so little else can be accomplished—including their ambitious NBP. In short, this is a serious question and decision… and it will require some serious adult judgment.
As we wait for the D.C. Circuit Court’s ruling, and discuss and dissect possible options, Tom’s speech is the voice of an experienced former Congressman who is wise in the ways of telecom. And that voice is reminding policymakers, indeed, all of us, to be humble about our ability to predict the future in such a complex and fast-moving industry. And it’s a voice questioning whether the proper role of government in this space should be reassessed. I think he’s onto something important.